Family Law

 

When it comes to family legal matters, Field Law, P.A. understands the stress and emotional toll that comes with it.   We wish to make this time as painless for you as possible. Field Law provides professional services in many areas of Family Law such as Divorce, Legal Separations, Child Support, Custody, Restraining Orders, Parenting Time Issues, Modifying Divorce Decree, Spousal Maintenance, and Step-Parent Adoptions.  No matter what legal problems you are having, Field Law will take care of you from beginning to end, ensuring that the best course you reasonably desire is promoted. 

 

Child Support

Field Law, P.A. provides exceptional and professional services on Child Support matters. Present employment or market conditions may have you wondering how you are going to make it paying or receiving your current child support.  We can help.

 

The following questions and answers will guide you through the information you should know when preparing for a legal case such as this. To get further questions answered and to set up a consultation, call us today.

 

Question: I know I have to pay child support.  How much do I have to pay? 

 

Before we address the issue of how much to pay, we first have to address for what type of child support we are paying.  It is commonly thought that there is only one form of child support to pay in Minnesota.  This is not true.  In fact, there are three types of child support prescribed by state statute:

 

1. Basic support

2. Medical support

3. Child care support

 

Basic Support

Basic support is what most folks refer to as child support.  It is the payment by one parent to the other to cover the child’s housing, food, clothing, transportation, education costs (not college) and other expenses to care for the child.  To the dismay of many payers (referred to as “Obligors”) of child support, there is no provision in the current child support law which mandates that the receiving parent actually apply the child support they receive to (or account for) these expenses.  The receiving parent can invest it, spend it on the child, or blow it on themselves.  So, what happens in Vegas stays in Vegas?  Yup, and that could include your child support money paid to your ex. The court is there to ensure that it gets paid.  After that, it is no longer their concern.

 

Medical Support

Medical support is additional child support for the medical and dental insurance costs for the minor children.  Each party is required to contribute to these costs. This is to be distinguished from the co-pays, deductibles, or non-covered medical expenses that each party will also be required to contribute to.  The percentage each party pays towards uninsured or underinsured medical/dental costs (not referring to insurance here) is also dictated by statute.

 

Child Care Support

Child care support is additional child support for the costs of child care related to education or employment.  So, if your ex is heading out to meet her next new boyfriend and she gets a sitter, you don’t have to foot any part of that bill.  But you better check her receipts.  It’s very easy to submit receipts signed by any Jane Roe to the office of child support claiming a child care expense was incurred.

 

Question:  Ok, but back to my question:  how is the child support amount calculated?

Child support is calculated by statute using each party’s gross monthly income as a fundamental guide.  There’s a formula for it in the statute but it is easier to go to the online calculator found at http://childsupportcalculator.dhs.state.mn.us/.  You will need to know the following in order to calculate child support properly (this comes directly from the online calculator website):

 

• Each parent's gross monthly income (from all sources)
• How many children live in each parent's home (do not count children for whom the parent already has a court order to pay child support)
• Any other child support orders for either parent
• Any spousal maintenance orders for either parent
• The amount of benefits from Social Security or the U.S. Department of Veterans Affairs paid to a joint child due to a parent's disability or retirement
• The monthly cost for both medical and dental coverage
• The amount of child care costs
• The percentage, or amount of parenting time awarded in a court order
• If the parent is incarcerated, the ability to pay/minimum basic support calculation does not apply.

 

What is a “joint child”?

A “joint child” is not a flower child from the 60’s.  Such a child is simply a minor child between you and the other parent.  You two created this child “jointly.”  There is also a reference in the statute and online calculator to a “non-joint child”; this refers to a minor child of yours or your ex that lives with you or your ex, BUT the other parent of this child is someone else.  The legislature recognized that having a child from another relationship residing with you carries a cost, so the calculator gives you a credit in that event.

 

Child Support Calculation

If you go to http://childsupportcalculator.dhs.state.mn.us with the data above, your child support can be calculated within a few seconds.  What drives the child support amount is the gross income of each party and the number of children involved.  The online calculator will give you a figure for all three types of support.  Sometimes there will be offsets for support between the three.

 

 

Question: Does the amount of parenting time I have with my kids matter for child support purposes?

The amount of parenting time the Obligor (the person paying child support) has does affect the amount of child support.  There are three general brackets of time spent with your children that will lead to a change in your child support obligation:

1. <10%.  If your annual parenting time is less than 10%;

2. 10% < 45%. If your annual parenting time is 10% or greater but less than 45%; or,

3. >45%.  If your annual parenting time is greater than 45%.

 

The more parenting time you have, the lesser your child support obligation; but you must cross brackets for a change to occur.  The law presumes that parenting time is 25% if no set parenting time schedule is set forth in your Decree or Order.  It is important to be aware that parenting time is primarily calculated by counting the number of overnight visits, but it can be counted otherwise if you work nights or have other suitable arguments for why overnights aren’t doable for you.

 

Question: But, what if my Order says I get them about 30% of the time, but in reality I have them in my care half the time?  Can I automatically move out of my bracket into the > 45% bracket and lessen my child support?

No.  Not without going to court first to change the parenting time order to reflect what’s really happening.  The court establishes parenting time by what is court ordered, not by what is practically happening.  So, you first have to change your parenting time schedule before the court will change your child support (these can be done at the same hearing).  There are legal arguments to be made here for such a change (like “integration”) for which you will need to speak to a lawyer.  But, the point is, you can ultimately reduce your support obligation if your parenting time moves from one bracket to another, AND that parenting time is referred to in a court order.  Do note that the inverse is true also.  If your parenting time started out as half the time with each parent, but lately you have had the kids only 30% of the time, the other parent may have grounds to change the parenting time order, and thus get more child support.

 

Question: So, if my ex has sole physical custody but I have parenting time more than 45% of the time, I won’t be able to get my child support changed?

That is incorrect.  You WILL be able to change support.  Minnesota’s child support law was revamped in 2008.  As part of this process, custody labels essentially became meaningless for child support purposes.  The court looks at the amount of parenting time, not at custody labels.  So, your ex would have sole physical custody, but if you have more than 45% parenting time, you will have child support substantially reduced.  The final calculation will likely be closer to what was awarded in “joint physical custody” cases before the law change.

 

Question: What if I have supervised visits?  How does this affect my child support?

Well, this tells me you don’t have any overnights.  If this is the case, you fall into the lowest bracket for parenting time, and you pay the most support possible of the three brackets.  In essence, you will be disallowed something called a “parenting expense adjustment”; which gives you a credit or discount of 12% off your statutory basic child support obligation.  To qualify for this 12% credit (“parenting expense adjustment”), you have to have at least 10% parenting time.  If you are under that, you will be required to pay full child support.

 

Question: What if I lose my job or my employer significantly cuts my hours or wages?  Am I out of luck reducing my child support?

Well, the short answer is, “No”, but there are complications.  If you are legitimately laid off and if you legitimately can’t find other work even though you have made a diligent effort to find work, the court will reduce your child support.  The problem is this little compound word called “underemployed”.  Most magistrates (child support judges) or district court judges I have run into will make a presumption that you have “voluntarily underemployed” yourself.  If they make this finding, even though you are only making – let’s say – $8.00 an hour at your new job (as opposed to the $15.00 an hour you made at your former job), the court will “impute” income to you of $15.00 an hour.  This is a financial death trap for unsuspecting Obligors seeking to reduce their child support.

 

You only get one crack at proving to the court that your ‘underemployment’ is in good faith, and if you come to court unprepared to address it—you lose!  Instead, you need to arm yourself with copies of all your job applications sent out, any replies received, any notes or acknowledgments for job interviews, etc.  You must prove to the court that you have gone out of your way to get work, but have been unsuccessful.  You must show, in essence, that the only thing left was dressing up in a Statue of Liberty costume and waving at people on the street corners during tax season to make a few bucks.  And, by the way, telling the judge you did all this is not proof to the judge.  Documents are.  Your word is meaningless.  You don’t get sympathy.  You don’t get the benefit of the doubt.  Don’t enter court like a deer in the headlights either.  Be ready!

 

Question: But, I lost my job a year ago, and have been looking ever since.  If I bring my motion now will the court adjust my child support to a year ago?

Nope.  The court will only modify a child support order back to the time that a motion is served and filed.  And, the court doesn’t even have to go back that far, if it chooses not to.  What the court cannot do is go beyond the service date for retroactive relief.  So, what is the moral of this story?  Serve and file your motion to modify support quickly, after your circumstances change.

 

Question: But, I am self-employed, and business has been really bad.  If I bring my tax returns showing that I am making a lot less money now that before, I will get my child support reduced, right?

Ha!  You missed your calling.  Maybe Gallagher or Sinbad could use a sidekick.  If you are self-employed and business drops, and you bring in tax returns to prove your woeful existence, go get a pick axe and start making your cave.  Because, after the child support magistrate gets done with you, you will be nothing but a hermit in short order.  While it defies logic, the Minnesota courts have basically held that certified signed tax returns are not determinative of one’s income; (and here I thought the IRS was all powerful).  In addition to bringing in your tax returns, including your attached schedules showing your business income and expenses, you will have to be prepared to bring in your actual business receipts (categorized) and your bank statements and checks for the past year or two (depending on your case).  You will need to present evidence on what assets you have (a picture showing a “Mater” truck from the movie “Cars” might help), what your living conditions are, how many soup kitchens you visited, etc.  Remember this, if you are self-employed, the court has you pegged as follows—you’re a liar and you’re a cheat.  Think about how you are going to dispel that perspective as you prepare for court.

 

Question: Well, I work for the government and receive a decent paycheck with a pension.  But, unbelievably, my pay got cut 3% last year.  Can I get my child support reduced?

Welcome to Minnesota, Cheesehead.   Nope, you’re out of luck.  To get your child support reduced, you must show a 20% reduction in income, or a more pointedly 20% reduction in your child support obligation, calculated via the ‘new’ child support statute (2008 law).  You certainly don’t qualify on the former, and the latter is unlikely as well, unless your ex had a significant change in her income which affects your child support obligation by more than 20%.

 

Question: What about my oldest child going off to college?  Can I change my child support so that I am only paying for the one remaining child at my ex’s home?

Yes, you can.  Emancipation of a child is cause alone to change your support obligation.  Make sure you have it calculated out before bringing your motion though.  Filing a motion to change child support could possibly lead to an increase in basic child support for the one remaining child, if incomes of the parties have significantly changed. You might be better leaving well enough alone.

 

Spousal Maintenance

What is Spousal Maintenance?

Spousal maintenance, which is called “alimony” in other states, refers to the financial support paid to an ex-spouse (“receiving spouse”) after a divorce.  Contrary to what some would like to argue, issues such as infidelity, abuse, or impure motives are not factors considered in determining whether spousal maintenance should be awarded.  Don’t waste your breath.  Spousal maintenance is based primarily on the financial need of a party.

 

What is “financial need” of a party? 

Well, according to state statute (Minn. Stat. 518.552), before spousal maintenance can be granted, a spouse seeking maintenance must demonstrate that she (I will use the gender reference “she” throughout this summary because most spousal maintenance recipients are ex-wives, not ex-husbands):

 

1. Lacks sufficient property, including marital property apportioned as part of the divorce to provide for the reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education  (I will underline, italicize or embolden text throughout this summary, to draw attention to key areas that the courts consider important); or

 

2. Is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment; or

 

3. Is the custodian of a child whose condition and circumstances make it appropriate that the custodian not be required to seek employment outside the home.

 

As you might have already ascertained, the third factor listed above is used only in a minority of cases.  So, I am not going to address this factor other than mention that it exists.

 

Standard of Living During the Marriage.

The first two factors are more commonly utilized by parties, and have a couple elements in common. One of which is “the standard of living established during the marriage.”  This “standard of living” provision was added by the legislature to the spousal maintenance statute in 1985.  Apparently, the legislature was concerned that an ex-spouse would not enjoy the same standard of living that she enjoyed during the marriage after she divorced.  So, a change was made.  This ended up placing a tremendous burden on the payer of spousal maintenance.  Most folks understand that in households where both parties worked during the marriage and both parties contributed to the common household expenses, a married couple’s lifestyle would be greater than if one of those working spouses is removed; and now two households require support.  Despite this oddity, the courts are still mandated to inquire into the standard of living enjoyed by the parties in the marriage in some vain attempt to preserve the marital standard of living after divorce.  This is an area that probably could use some statutory revisions; so that the judiciary can have proper and reasonable guidance.

 

Reasonable Needs of Each Party

Both of the first two factors also involve defining what the “reasonable needs” of a party are, or determining whether a party can provide herself “adequate self-support”.  Both of these elements require examining the “reasonable” monthly living expenses of each party.  It is quite common in divorce cases to see living expenses for each party exceeding their present income.  In such cases, something has to give.  Spousal maintenance awards may appear to utilize the “Robin Hood” approach (taking from the one who has plenty and giving to the one who has less), but a multitude of factors must be examined by the court (8 to be exact) to determine both what is a fair amount and the duration of spousal maintenance.  We will get to those 8 factors shortly.

 

The bottom line: If the requirements of Minn. Stat. 518.552 are not met, there should be no further inquiry into whether spousal maintenance should be awarded.  If both spouses have sufficient property to provide for their “reasonable needs”, then there is no need for support.  If both spouses can provide “adequate self-support” through employment, no support is needed.

 

 

Permanent or Temporary Spousal Maintenance?  That is the Question

So, let’s say that there is a financial need of some sort.  What’s next?  Well, the court could award either permanent or temporary (also referred to “Rehabilitative”) spousal maintenance.  What’s the difference?  Well, with permanent – you guessed it – it’s forever; generally defined as until the payer of spousal maintenance retires (it can continue past retirement, if the payer still has good income—beware), either party dies, or if the receiver of maintenance remarries or otherwise becomes self-supporting.

 

Here is an interesting fact:

Did you know that, in 1984, the Minnesota Court of Appeals interpreted the spousal maintenance statute as disfavoring awards of permanent spousal maintenance unless “exceptional circumstances” existed?  That view was in vogue for only a year because the legislature took prompt action a year later to amend the spousal maintenance statute to have it favor permanent spousal maintenance awards.  They also made a change to that statute which essentially says, if there is any uncertainty regarding whether permanent spousal maintenance is needed—it’s needed.  They established a preference in favor of permanent spousal maintenance in such cases.

 

What about Temporary Spousal Maintenance?  What’s that? 

Ok.  So what is “temporary spousal maintenance?”  Well, it is full spousal maintenance but for a shorter time period; could be two years, could be ten years, but not just until the Minnesota Timberwolves win their division.  Usually, an end date less than the date for retirement is specified in the Decree.  The court really likes awarding “temporary spousal maintenance” in those cases where a receiving spouse is going on to further her education, or is training for a new occupation.  Such situations are “slam dunks” to getting temporary maintenance presuming the all important “reasonable needs” test is first met.

 

So, tell me already.  How much am I going to have to pay for spousal maintenance? 

Most lawyers get hit up with this question early on in the divorce process.  It is only natural to ask.  Supporting two households requires big chunks of change.  So, what’s the formula?  Bad news; there is no formula, unlike child support which does have one.  What the court does is evaluate 8 factors to decide how much and for how long maintenance shall be paid.  What are those 8 factors?  Read on.

 

1. The financial resources of the spouse seeking maintenance (this superfluous provision can include her own marital and non-marital property awarded to her besides her income);

 

2. The amount of time that is necessary for the spouse seeking maintenance to acquire necessary skills or education to find appropriate employment (this has “temporary spousal maintenance” written all over it);

 

3. The age and physical and emotional health of the recipient spouse (young, healthy spouses need not apply unless they can’t provide for adequate self-support for acceptable reasons);

 

4. The standard of living established during the marriage (I would love to beat this “dead horse” some more, but as long as the legislature refuses to take this out of the statute the court’s must look at it);

 

5. The length of the marriage (oh, this is the big one, the tail that wags the dog.  Long term marriages beg for maintenance, BUT there must be a financial need first at least according to state statute);

 

6. The contribution and economic sacrifices of a homemaker including loss of seniority, retirement benefits and other employment opportunities foregone while working at home (this factor is well-meaning; as some spouses have given up their careers to raise their kids, and so they shouldn’t be penalized for that sacrifice.  The flip side, however, is whether a spouse worked much, or at all, prior to a marriage, during the marriage outside the home, or even at home.  The Court will assume some “contribution” by a homemaker if she was home to take care of the children while the other spouse worked outside the home.  This “I’m a broke homemaker” factor is not scrutinized much.  Just prove your lack of income during the marriage and that you stayed home and you’re in for receiving maintenance, at least on this factor);

 

7. The financial resources available to the spouse from whom maintenance is sought (oh yeah, remember the other guy?  The one who has to pay maintenance?  The statute does dedicate one factor to him.  Basic question here is, can he live on what he makes and still pay maintenance to his ex?  Careful here.  Even if his “reasonable living expenses” somewhat exceed his income, the court can be merciless.  They will disregard certain expenses or reduced them in order to justify some greater spousal maintenance award.  They can do this to the receiving spouse’s side of the ledger too, but I believe those are more rare sightings);

 

8. The contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of the spouse as homemaker. (See #6 above.  If the wife picks up a hammer to help on a home construction project, beware; spousal maintenance lurks down those corridors)

Does any one of these factors trump the others? 

No.  Do any one or two factors draw attention to itself more than any other?  Yeah.  The length of the marriage & the age, physical/emotional health of a spouse get noticed from the start.

 

Further, the Court is granted “broad discretion” in determining the amount and duration of spousal maintenance.  This discretion invites significant litigation in divorce settings as each side postures for position.  It also can be emotionally draining to deal with for the parties involved.

 

So, if it goes to trial, the court awards or denies spousal maintenance, right? 

It’s true for most part; but there is a third option.  The Court could “reserve” the issue of spousal maintenance which means it puts the issue “on ice”, saving its determination for another day.  This sets up a ticking time bomb; as the receiving party could bring a motion at any time to activate or “unreserve” the maintenance provision.  This doesn’t necessarily mean that spousal maintenance will be awarded, but it does mean that the 8 factors listed above will now be examined to determine whether maintenance should now be commenced.

 

Ok.  You’re telling me that if I go to trial and the Court orders me to pay permanent spousal maintenance, I’m stuck with it until I retire, die, etc.? 

If circumstances don’t change, yes.  But if circumstances change “substantially”, which make the original order for maintenance “unfair or unreasonable”, the court can change the maintenance order; including eliminating the maintenance obligation entirely.  Sometimes lawyers try to limit future changes to spousal maintenance by inserting in a divorce decree something referred to as a Karon waiver (named after the infamous Karon v. Karon Minnesota case).  Inserting a Karon waiver into a Decree deprives the Court of jurisdiction to entertain motions to modify maintenance in the future.  A Karon waiver essentially locks one into a certain amount of spousal maintenance for a certain amount of time.  In these present, uncertain economic times one should be careful about entering into such Karon waivers.  Perhaps, the use of a lump sum “buy out” of spousal maintenance would be more prudent.

 

What do you mean “buy out” of spousal maintenance? 

If a monthly amount for spousal maintenance and duration can be estimated, sometimes the parties can agree to a “buy out” of maintenance.  This means the payer of spousal maintenance will pay to the receiving party a set, lump sum in lieu of making monthly payments.  This lump sum can be considered “spousal maintenance” (but, WARNING, not all of it may be tax deductible due to annual limits on such deductions or a property award).  One should be aware that there is a time-value to money—the same amount of money today, is worth more than the same amount of money in the future (due to inflation).  Thus, it would NOT be prudent to simply total up the annual payments of spousal maintenance and pay that amount as a lump sum as the “buy out” amount.  Let’s use an example to illustrate the point:

 

 

A final word to the wise.

Don’t think that being presently unemployed or underemployed is your ticket to spousal maintenance-free living.  A Court may “impute” income to you based on your prior earnings, employment and/or education.  If you aren’t trying hard enough to find work, or to be more gainfully employed, as you were in the past, the court’s going to consider you a deadbeat and impute income to you.  The self-employed are particularly vulnerable to this perception.  There are ways to prove to the court that your unemployment or underemployment is in good faith, but you will need to talk to your attorney about that.  So, call me. I will gladly discuss the issue with you and help determine whether you are eligible for Spousal Maintenance. Call today at 763-427-9066 to set up an appointment.

 

Restraining Orders

When you find yourself in a possibly harmful situation, don’t waste time deciding what to do. Field Law, P.A. provides services on issuing Restraining Orders to prevent further abuse, stalking, or domestic violence. You should not have to live always looking over your shoulder, and the attorneys at Field Law, P.A. will take action to ensure your safety. On the other hand, if you feel the Restraining Order you were just served with is baseless, or improper, contact Field Law, P.A. and we will appear in court to zealously defend you.

 

Don’t hesitate to call Field Law, P.A. today at 763-427-9066.

 

Parenting Time

Divorce can be a difficult time for both parties, especially when there are children involved. Parenting Time (visitation) is usually the main concern of spouses seeking divorce. If you’re separated and need to decide on your parenting time options, Field Law, P.A. can help you create a plan or help to modify an existing schedule so that it works for both you and your ex.

 

At Field Law, P.A. we will identify and assist you in avoiding or arranging common parenting time problems, such as those resulting from long-distance travel, changing work schedules, or orders for protection. We will engage in mediation with the opposing party to help you both reach a fair compromise. But if that fails, Field Law, P.A. will not hesitate to file a motion on your behalf to enforce your rights.  Call us today at 763-427-9066 to set up an appointment!

 

Step-Parent Adoptions

The decision of a step-parent to adopt another person’s child is a life-changing event. Field Law, P.A. can help you through this situation. A step-parent desiring to adopt will be take on full legal responsibility for that child and shall raise him or her as their own from that day forward. The biological parent, on the other hand, is surrendering their rights as a parent and shall no longer be responsible for the child under any circumstances, including paying for child support. The adoptive step-parent will make all the important decisions regarding the child’s life in lieu of the biological parent. 

 

We have helped many families through this transition period and hope to extend our services to you as well. Our attorneys will protect your rights and oversee your case from start to finish. Call us at 763-427-9066 and set up an appointment to meet with one of our attorneys today!